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August 13, 2005

Cert petition in a California Blakely case

Literally minutes after I posted the Gomez cert. petition from Tennessee, I got word from Jonathan Soglin at the First District Appellate Project of a similar cert petition filed on August 9 coming from California in the case of Abeyta v. California. You can view an electronic version of this petition at this link on the FDAP's Blakely Resources web page. According to Jonathan, this is likely the first cert petition following the California Supreme Court's suspect Black decision which challenges California's Determinate Sentencing Law.

The petition in Abeyta poses this question: "Whether, after this Court's decision Booker v. United States, 125 S.Ct. 738 (2005), the bright-line rule enunciated in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), continues to establish a right to a jury trial and proof beyond a reasonable doubt in a state sentencing scheme identical in all relevant respects to the Washington scheme at issue in Blakely." Here are additional selections from the introduction to the argument:

Review is necessary so that this Court can reaffirm what it held in Blakely. In Blakely, this Court explicitly applied a "bright-line rule" to answer the question whether there is a right to a jury trial on facts necessary to impose a sentence higher than the statutory maximum.... United States v. Booker, 125 S.Ct. 738 (2005), implemented the Blakely holding, yet some courts — the California and Tennessee high courts in particular — perceived a blurring of the bright line in Booker. This perception emboldened them to conclude that any judicial discretion may take a sentencing scheme outside of the ambit of Blakely. Other courts have applied the bright-line rule, including the New Jersey Supreme Court, which has recently expressly rejected the California Supreme Court's interpretation of Blakely and Booker as directly contrary to this Court's precedents. State v. Natale, 2005 WL 1802084, slip op. at 26-27 (N.J. Aug. 2, 2005).

Review is, therefore, also appropriate because California's decision in Black is wrong. In fact, the approach taken by the California Supreme Court was one advocated by the State of Washington in Blakely and rejected by this Court. California's sentencing scheme unconstitutionally permits judicial fact-finding — upon proof by a preponderance of the evidence — of facts necessary to impose the aggravated (upper) term sentence. California's scheme is so identical to the scheme at issue in Blakely, and thus falls so clearly within the bright-line rule of Apprendi, that full briefing on the merits may not be required for this Court to review the Black decision.

Finally, the issue is of great significance for an enormous number of cases. The constitutionality of the core of California's determinate sentencing scheme is at issue. While some California defendants convicted of third strikes, murder, or some serious sex offenses receive presumptive indeterminate terms, the vast majority of felony defendants are sentenced under the determinate sentencing law at issue in Black and in this case.

This case provides an excellent opportunity for resolving the question presented. This case, unlike Black itself, involves only judicially-found aggravating factors related to the commission of the current offense, i.e., particular cruelty or callousness, particular vulnerability on the part of the victim (a particularly young age at the onset of the offense), sophistication and extraordinary manipulation by petitioner, and inducement of another to assist in the offense. App. C 1373-1374. This case is thus unencumbered by the complexity of recidivist-related aggravating factors possibly covered by the exception to the right to a jury trial identified in Almendarez-Torres v. United States, 523 U.S. 224 (1998). This case, also unlike Black, does not involve an aggravating factor that a jury found true in returning a probation ineligibility finding.

Cert petition in the Tennessee Blakely case Gomez

Courtesy of Nashville attorney David Raybin, I have received a copy of the certiorari petition which is to be filed on Monday seeking to garner SCOTUS review of the Tennessee Supreme Court's decision in State v Gomez. Recall that, as detailed here, the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's presumptive sentencing scheme, a ruling which, as detailed here, seems to rest on a misunderstanding of Apprendi and Blakely. (Notably, every litigant involved in Gomez, including the Tennessee Attorney General, petitioned for rehearing (see details here and here), but the Tennessee Supreme Court denied rehearing.)

The cert. petition, which can be downloaded below, highlights the problems with the Gomez view of Blakely (a view which was also essentially adopted by the California Supreme Court in its Black decision). Here are highlights from the start of the argument section of the petition:

While there are minute differences between the Washington and Tennessee sentencing structures, at bottom, both systems contain a mandatory, "presumptive" base sentence beyond which a trial judge may not exceed without additional judicial factfinding. This case is indistinguishable from Blakely which held that such additional judicial fact-finding violated the Sixth Amendment....

The Tennessee Supreme Court misread Booker as somehow modifying or overruling Blakely. This interpretation is simply incorrect and represents a fundamental constitutional error. Any modification of Blakely should come from this Court and not the Tennessee Supreme Court.

The decision of the Tennessee Supreme Court, if left unresolved, will foster continued confusion in other states. Indeed, there is now a split of authority in the United States as to whether Booker trumps Blakley. Defendants in Tennessee are still being sentenced every day in contravention of the Sixth Amendment causing enormous disruption of the criminal justice system. Notions of "plain error" under state law are best resolved in the first instance by the Tennessee Supreme Court once its fundamental misapprehension of the Sixth Amendment has been corrected. Given that there is no dispute between the Petitioners and the State of Tennessee on the constitutional question presented here, this case is appropriate for summary reversal. Accordingly, this Court should grant the petition for writ of certiorari.

As this snippet highlights, there is a state plain error issue in Gomez, which makes uncertain how the Tennessee Attorney General will respond to the cert. petition. The Tennessee AG is on record saying Gomez is wrong, but the AG might not want SCOTUS involvement in this particular case. And how the Tennessee AG responds to the cert. petition could in turn impact the Supreme Court's view (or should I say the clerk's view) of whether Gomez merits review. Stay tuned.

August 12, 2005

Updating the (declining) state of the death penalty

Thanks to this notice over at the Death Penalty Information Center, I see that the NAACP Legal Defense Fund has released its Summer 2005 update of Death Row U.S.A. As DPIC notes, the number of inmates on death rows around the country as of July 1 is 3,415, which is "down from 3,452 as of April 1 and down considerably from the 3,692 inmates recorded on October 1, 2002.... Some of the [recent] declines are due to juvenile offenders being removed from death row in accordance with the U.S. Supreme Court decision in Roper v. Simmons."

This latest update of Death Row U.S.A. from LDF's Criminal Justice Project includes not only a wealth of information about death row inmates and executions, but also has a very helpful summary of recent Supreme Court decisions and pending cases related to capital punishment.

In a number of prior posts, some of which are linked below, I have documented recent declines in the use of the death penalty in the United States:

The limits of a limited plain error remand

An interesting little decision from the Seventh Circuit today highlights the important distinction and consequences of the "limited remand" approach to Booker plain error adopted by the 2d, 7th, 9th and DC Circuits as opposed to the "total remand" approach adopted in other Circuits (namely the 3d, 6th and partially in the 4th). In US v. Re, No. 03-2089 (7th Cir. Aug 12, 2005) (accessible here), after an initial order of a limited remand, the defendants submitted evidence of post-sentencing events and conduct which the district court said might impact what sentence he would now think appropriate. But, explained the Seventh Circuit in Re,

in a Paladino [limited] remand the conduct or circumstances that bear on the § 3553(a) factors must have been in existence at the time the original sentence was imposed. In this case, the § 3553(a) factors raised by the defendants all involved matters occurring after the date of sentencing. The goal of the Paladino remand is to determine if, at the time of sentencing, the district judge would have imposed a different sentence in the absence of mandatory guidelines. Post-sentencing events or conduct simply are not relevant to that inquiry.

I am pretty certain that in circuits ordering total Booker remands even in plain error situations, post-sentencing events and conduct not only may be, but actually must be, considered by the district court in the course of a full Booker resentencing.

In this post, I spotlighted Blakely's applicability to restitution and other non-prison sentences as an issue that merits Supreme Court attention sooner rather than later. And, as detailed in this post, some academic commentators have forcefully argued that Blakely/Booker should be applied to federal restitution. Today in US v. Sosebee, No. 03-1923 (6th Cir. Aug. 12, 2005) (available here), the Sixth Circuit holds "that restitution is not subject to Booker analysis because the statutes authorizing restitution, unlike ordinary penalty statutes, do not provide a determinate statutory maximum."

The Sosebee decision provides a nice overview and interesting analysis of this issue, which merits a long quote (with cites omitted):

It is true that under Sixth Circuit case law, restitution constitutes punishment. Although restitution is considered punishment in this context, we have nevertheless held that restitution orders are not affected by the Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the restitution statutes do not specify a statutory maximum. Several other circuits, including the Third, Seventh, Eighth, and Tenth, have also held that Apprendi does not apply to restitution orders under the Victim and Witness Protection Act or the Mandatory Victim Restitution Act.

In addition, five of our sister circuits have recently addressed the issue of whether Booker affects restitution orders. Although they rely on different reasoning, all five circuits have uniformly declined to reverse an order of restitution based on the concerns raised in Blakely or Booker. For several reasons, we consider it appropriate to take the same approach as that taken by the rest of the circuit courts that have addressed this issue and to adopt the same rule.

First, restitution orders are authorized by statute, 18 U.S.C. §§ 3663, 3663A, and 3664, and in this sense are distinct and separate from the United States Sentencing Guidelines. Although the guidelines mandate imposition of restitution where allowable under the statutes, the restitution statutes function independently from the guidelines and do not rely on the guidelines for their validity. Thus, the Booker Court's holding that the Sentencing Guidelines are now merely advisory does not affect orders of restitution. Nor does the Booker's analysis of the Sixth Amendment affect restitution, because a restitution order for the amount of loss cannot be said to "exceed the statutory maximum" provided under the penalty statutes. Finally, the Victim and Witness Restitution Act and the Mandatory Victim Restitution Act specifically state that the amount of restitution should be equal to the "amount of each victim's losses as determined by the court." 18 U.S.C. 3664(f)(1)(A) (emphasis added). Where, as here, a statute mandates that a judge exercise his or her discretion, Booker provides no impediments to a judicial determination of the necessary underlying facts.

The approach taken to this issue by the Sixth Circuit and other lower courts is quite understandable given their obvious desire to keep Blakely and Booker from disrupting other areas of seemingly settled sentencing law. But the approach also seem quite debatable given Justice Scalia's forceful and broad assertion for the Court in Blakely that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."

I wonder what John Roberts might think about all this.

UPDATE: For those really interested in the federal law of restitution, a Seventh Circuit decision today in US v. Day, No. 04-2663 (7th Cir. Aug. 12, 2005) (accessible here), provides an extended discussion of various (non-Booker) legal issues arising under the federal statutes providing for orders of restitution.

August 11, 2005

The shape of the post-Booker universe

Thanks to law.com, you can access this interesting article from Texas Lawyer entitled "Survey Reveals Little Change in Sentencing Habits After Booker." The article draws on US Sentencing Commission data and interviews to spotlight "that federal trial judges across the country largely have been sentencing criminals within guideline range ... since the Supreme Court handed down its 5-4 ruling in Booker."

The article does a nice job providing context for the USSC's post-Booker sentencing data, although the national data discussed in the article comes from an older data report from last month rather than the latest, greatest USSC data released earlier this week. Interestingly, the article discusses some district-specific post-Booker data — apparently from a report that "was presented in July for a U.S. Border Conference meeting" — that I do not believe has been made generally available to the public.

Roberts, the cert pool, and sentencing jurisprudence

Tony Mauro today has this great Legal Times piece which asks in its title "Will Roberts Jump Into the Supreme Court Cert Pool?" The article provides terrific background on the SCOTUS cert pool and its potential problems given that every Justice, save for Justice Stevens, relies on the work of the pool and thus "virtually all of the cases that come to the Supreme Court are denied review and disposed of with only one or two law clerks — and no justices — actually reading the briefs." The piece has me thinking about not only the role of clerks in setting the High Court's agenda, but also whether a Justice Roberts' might change the Court's agenda even more than its jurisprudence.

Of course, I think about these issues in the context of sentencing. Regular readers know that I have previously ranted about the Supreme Court's expenditure of so much time and energy on death penalty cases when there are so many pressing post-Blakely and post-Booker legal questions needing to be answered. (Just some of my prior rants can be found here and here and here and here and here, and I have outlined in this post just some of the post-Blakely and post-Booker questions that I think merit the Supreme Court's immediate attention.) One hope I have for a Justice Roberts is that he might help shift the Court's sentencing agenda, although this might be a vain hope given that he lacks any real trial court or criminal law experience.

I have long speculated that the SCOTUS emphasis on capital cases is a by-product of clerk interest and the operation of the cert pool. Especially for folks not steeped in day-to-day criminal justice realities (which I think is a fair description of most clerks), death penalty cases likely always seem more important (and certainly more exciting) than non-capital sentencing cases — after all, the issue is a matter of life or death. Moreover, I would bet that many clerks have had their fill of non-capital sentencing cases, as a result of a year dealing with the diktats of the federal sentencing system while clerking on a circuit court, before they get to the Supreme Court.

But those who are steeped in day-to-day criminal justice realities know that many non-capital sentencing issues, and not only those that arise post-Blakely and post-Booker, are far more consequential to far more criminal cases than many of the capital sentencing issues that SCOTUS takes up each year. And so I will close by quoting again astute and potent comments on this topic from Mike at Crime & Federalism:

What's up with the Court's granting cert. on so many death cases? The death penalty is rarely meted out. If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues. If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme. Sure, "death is different," but death is also rare. The horrors of prison are real and frequent.

More on Harris from the 7th Circuit

The Seventh Circuit today in US v. Jones, No. 04-2587 (7th Cir. Aug 11, 2005) (available here), reiterated yet again that Harris remains good law and allows judicial fact-finding for mandatory minimum sentences even after Blakely and Booker:

Although there may be some tension between Booker and Harris, the Supreme Court's extension of the Apprendi rule in Booker does not enlarge the underlying constitutional argument, which was duly considered by the Court in Harris.

The Jones ruling provides a surprisingly full discussion of this matter given that the 7th Circuit made the same point last month in US v. Duncan, No. 04-1916 (7th Cir. July 1, 2005). As I explained in this this extended post on Duncan, that case involved a notable set of facts which could allow the Supreme Court (with its eventual new member) to review Harris in light of what Blakely and Booker have said. This latest Jones ruling highlights that defendants will be raising this issue again and again (at least to keep it preserved) until the Supreme Court speaks directly to the vitality of Harris in light of Blakely and Booker.

More on the joys of criminal history diktats

A few months ago in this post, I commented on the significance of the federal sentencing guidelines' criminal history diktats and expressed hope that the Booker remedy might allow courts to give less attention to (substantively irrelevant) criminal history diktats and more attention to the (substantively sensible) mandates of 3553(a). But, because criminal history diktats remain key to some mandatory minimum sentences, and because most circuit courts seem inclined to enforce the strict calculation of guideline ranges even post-Booker, I suppose the diktats are here to stay. Two recent circuit court cases highlight this depressing reality about the persistence of these diktats:

Today, the Sixth Circuit gives us an incredibly thorough and thoughtful account in US v. Cole, No. 04-1702 (6th Cir. Aug. 11, 2005) (available here) of how to determine "when a defendant's prior conviction is 'similar' to an offense listed under § 4A1.2(c) such that the prior conviction may not be counted towards his criminal history score." Though college kids might be very interested in this case — the issue arises as the court assesses whether a state conviction for being a minor in possession of alcohol should increase the defendant's criminal history score — I find the decision remarkable for its review of the amazing jurisprudence that has developed around this criminal history diktat of "similar."

Yesterday, the diktat arose in the context of mandatory minimum sentencing for the Second Circuit in US v. Glen, No. 04-2394 (2d Cir. Aug. 10, 2005) (available here). The defendant had been sentenced to a mandatory life term under § 841(b)(1)(A) based on two prior felony convictions, but the Second Circuit discovered that, technically, one of the defendant's convictions from 1977 was not "final" because, even three decades later, the defendant could possibly still pursue his appeal. Appellate Law & Practice provides more details here about Glen, which is a decision that would surely make Franz Kafka proud of the operation of the federal sentencing system.

WorldCom sentencing wrap-up and reflections

Ellen Podgor in this post over at the White Collar Crime Prof Blog has a terrific summary and analysis of the federal sentences handed out to the various defendants in the WorldCom fraud case. Ellen focuses on the profound impact that cooperating with the government has had on these sentencings (and this a trend which should continue with today's scheduled sentencing of key cooperator Scott Sullivan). And Tom Kirkendall over at the blog Houston's Clear Thinkers shares a number of additional observations on these cooperation realities in this post.

UPDATE: As detailed in this AP report, Scott Sullivan "was sentenced to five years in prison Thursday by a judge who called him 'the architect' of the largest accounting fraud in U.S. history." Peter Henning at White Collar Crime Prof Blog provides commentary on this outcome here. This NY Times account of the sentence astutely notes that 5 years for Sullivan is "a fifth of what sentencing guidelines suggested and a striking example of the benefits of cooperating with government prosecutors."

Judge Weinstein on rehabilitation as a sentencing goal

A kind reader sent me news of a decision earlier this week by US District Judge Jack B. Weinstein in US v. Hawkins, No. 02-CR-563, 2005 WL 1869500 (EDNY Aug. 8, 2005). Of course, Judge Weinstein has long been a member of the Sentencing Judges Hall of Fame, and his latest work in Hawkins is grand opus which explores the philosophy of punishment, the meaning of rehabilitation, and the federal sentencing guidelines after Booker. Here is the opinion's opening:

The government appealed from the district court's grant of a downward departure on the grounds of extraordinary rehabilitation. The United States Court of Appeals for the Second Circuit vacated the sentence and remanded the case for findings of fact. It is the government's view that the defendant, a young mother, must be imprisoned. The court disagrees.

By a standard of clear and convincing evidence there has been extraordinary rehabilitation, both at the time of the original sentence and now. The fact that defendant engaged in further criminal activity while she was in the process of rehabilitation does not preclude a finding of extraordinary rehabilitation. See, e.g., United States v. Kane, 88 F. Supp. 2d 408, 409 (E.D.Pa. 2000) (granting downward departure for drug trafficking conviction based on defendant's extraordinary rehabilitation despite the fact that "[w]hile under supervision of Pretrial Services, he tested positive for drug use several times...").

August 10, 2005

Sentencing around the blogosphere

Grits for Breakfast has this post which provides a fascinating account and fantastic analysis of a county DA's decision to enter into a plea agreement reducing capital murder charges in a high-profile local case based in part on the DA's "own religious views about redemption and the value of life."

TalkLeft here and the White Collar Crime Prof Blog here are discussing the latest sentencing of a WorldCom defendant.

Criminal Appeal has this post noting a state bill "which would create a moratorium on executions in California until the California Commission on the Fair Administration of Justice reveals its findings on wrongful convictions and other problems in California's criminal justice system."

The Legal Theory Blog here notes a new article by Professor Kathleen Brickey, with the lovely title Mostly Martha, which includes a section exploring whether Martha Stewart's sentence was appropriate.

Amazing reasonableness debate from the 8th

I have not been able to keep up with most of the Booker circuit action this week while I was attending the NASC Conference in DC. (Importantly, Appellate Law & Practice has some coverage of some recent Booker rulings, and I highly encourage readers to help me spot consequential cases I may have missed.) But there is one recent ruling on reasonableness coming from the Eighth Circuit that is important and fascinating for a number of reasons.

In US v. Winters, No. 04-3210 (8th Cir. Aug. 9, 2005) (available here) the district court, sentencing in a manslaughter case in the wake of Blakely, treated the guidelines as advisory and exercised discretion to disregard the guidelines' maximum sentence of 191 months in order to impose the statutory maximum of 240 months. By a split 2-1 vote, the Eighth Circuit upheld this sentence as reasonable. The majority opinion's discussion of reasonableness is light of the 3553(a) factors is relatively cursory, but it includes this interesting and important passage when rejecting the defendant's claim that his sentence was unreasonable for being outside the guidelines:

Applying Winters's argument, that the range of reasonableness is essentially co-extensive with the Guidelines range, would effectively render the Guidelines mandatory. We have been directed to review a sentence for reasonableness based on all the factors listed in § 3353(a)(6). The Guidelines range is merely one factor. We cannot isolate possible sentencing disparity to the exclusion of the all the other § 3553(a) factors.

Though this passage undercut Winters' argument for a lesser sentence, I suspect other defendants (and defense attorneys) in the Eighth Circuit will be very pleased with these sentiments. I read this passage as essentially a rejection of the claim, often suggested by prosecutors and seemingly embraced by the Seventh Circuit (background here), that a guideline sentence is per se reasonable and that the guideline range is still to be the dominant post-Booker sentencing consideration.

Notably, Judge Heaney's dissent in Winters adds more intrigue and import to the decision. Judge Heaney asserts that the district judge supported his upward variance by referencing the sentence the defendant would have received in state court. Judge Heaney complains about reliance on this factor, asserting that "sentencing judges may not attempt to equalize federal sentences to their state criminal analogs." But recall that Judge Heaney is writing in dissent; by negative inference one might conclude that the majority in Winters believes that, after Booker, a judge may attempt to equalize federal sentences to their state criminal analogs. Again, for defendant Winters this is not much help; but many other defendants may be able to use Winters as support for seeking a downward variance based on state-federal disparity. (Recall that this issue is causing a stir in the First Circuit.)

Also of interest is what is not discussed in Winters. First, no mention is made of parsimony provision of 3553(a), even though the thrust of Judge Heaney's dissent is that a guideline sentence was sufficient to serve the purposes of punishment in this case. Second, no mention is made of ex post facto/due process concepts, even though Winters committed his crime before Blakely, and his sentence apparently would have been firmly capped at 191 months but for Blakely. On these facts, I think a strong (though debatable) argument can be made that ex post facto/due process principles precludes the judicial addition of 4+ extra years of prison time here. Third, it is interesting that the one silent panel member in Winters just happens to be Judge Diane Murphy, former Chair of the US Sentencing Commission.

Judge Adelman spotlights problems with mandatories

During our panel about mandatory sentencing at this week's NASC Conference, Julie Stewart of FAMM made the terrific suggestion that the US Sentencing Commission update its terrific (but now a bit dated) critique of crude and harsh mandatory minimum statutes in its Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (1991). Especially post-Booker, when a few members of Congress seem eager to add crude and harsh mandatory minimum provisions to every piece of legislation, it would be extraordinarily valuable for the USSC to reiterate the many problems created by crude and harsh mandatory minimum sentences that it detailed in its 1991 report.

Fortunately, we do not need to wait for the USSC to get a post-Booker primer on the problems with crude and harsh mandatory minimum sentences within a guideline system. Sentencing Hall of Famer Judge Lynn Adelman in his opinion in US v. Alexander, No. 04-CR-253 (E.D. Wis. Aug. 9, 2005) (available for download below), provides an extended thoughtful explanation of the problems that mandatories continue to pose in the post-Booker world. Here is just a small snippet of an opinion that should be read in full:

[S]tatutes establishing mandatory minimum sentences isolate a single aggravating circumstance and require a disproportionate increase in punishment whenever the circumstance is present. This can lead to sharp differentials or "cliffs" based on small differences in offense conduct. United States Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 29-30 (1991) (noting § 924(c) as an example of a statutory mandatory minimum that overrides the guideline approach of incremental punishment). Mandatory minimums can therefore distort the rationality of the guideline system set up by the SRA. William W. Wilkins, Jr., Letter from Chairman Wilkins Concerning Mandatory Minimums, reprinted in, 3 Fed. Sent. Rep. 103 (Sept./Oct. 1990).

ACS panel discussion on Booker now on-line

I am back home in Ohio, though my mind is still racing from all the terrific issues and idea that came up during the NASC Conference (which I will discuss in posts to come). I return to see that, as detailed here at the ACSBlog, the American Constitution Society now has available the video of its plenary session, "Sentencing After Booker and Blakely: How Much Has Changed?" from the ACS 2005 National Convention. The panel discussion, which can be accessed here, is ably moderated by Jeff Fisher and has federal Judges Michael McConnell, Joseph Bataillon, David Coar, Marsha Berzon, Nancy Gertner and David Hamilton discussing the practical impact of the Booker and Blakely decisions on federal criminal sentencing.

I am quite pleased and bemused that Judge Hamilton starts his remarks, just after the 29 minute mark of the video, by saying that, after Booker was handed down, "a lot of the blogging focused on the song by The Who, Won't Get Fooled Again." I believe Judge Hamilton is referring to this post and this post.

August 9, 2005

Gonzales reiterates call for Booker fix

As detailed in this article, AG Alberto Gonzales gave a speech at the ABA Annual Meeting on Monday in which "Gonzales said his biggest concerns were the Federal Sentencing Reform Act, the Patriot Act and the Voting Rights Act." In the ABA speech, which can be accessed here, Gonzales reiterated points first developed in a June speech in which he advocated a legislative response to Booker in the form of "the construction of a minimum guideline system." (The June speech's basics are here, my earlier commentary on that speech can be accessed here and here and here and here, and editorial criticisms of that speech are here and here and here and here.)

Here are some quotes from Gonzales' latest iteration of his support for a Booker fix involving "the construction of a minimum guideline system":

I fear it is inevitable over time that, with so many different individual judges involved, exercising their own individual discretion, in so many different jurisdictions, even greater disparities among sentences will occur under a system of advisory guidelines. I am concerned that under such a wholly voluntary system we will not be able to sustain the progress we've made and victims may be victimized once again by a system that is intended to protect them.

Since the Booker decision, numerous legislative proposals have been suggested in response and they should all be studied and discussed. I continue to listen and keep an open mind, and one proposal that I have already indicated appears to preserve the protections and principles of the Sentencing Reform Act, and thus deserving of serious consideration, is the construction of a minimum guideline system.

The advantages of a minimum guideline system are many. It would preserve the traditional division of responsibility between judges and juries in criminal cases and retain the important function of the U.S. Sentencing Commission in providing guidelines to the courts regarding sentencing. It would also allow judges some flexibility for extraordinary cases. And a minimum guideline system would be fully consistent with the Sixth Amendment, as interpreted by the Supreme Court.

Following Gonzales' June speech suggesting a minimum guideline system, I had this series of questions. And two key questions still have not been directly addressed by Gonzales or others in DOJ: (1) If advisory guidelines are so bad, why did DOJ urge this remedy in post-Blakely litigation? (2) If the old mandatory guidelines were so effective, why the need to construct a new "minimum guideline system"? In addition, as I explained here, now that the AG is weighing in on the post-Booker policy debate, I believe that DOJ should be making public whatever sentencing data it is collecting (especially since the USSC's post-Booker data, up through the latest data run, do not really seem to support Gonzales' complaints about the current post-Booker status quo).

More post-Booker data from the USSC

There were too many great moments from day 1 at the NASC Conference for me to relay them all at this late hour. (I hope after the conference to report some highlights later this week.) But I can easily relay that, to my great excitement, the US Sentencing Commission produced a new post-Booker data run for the conference.

The latest, greatest USSC post-Booker data were "extracted at close-of-business on July 12, 2005," which marks exactly six months after the Booker decision. These data cover roughly 27,000 cases and are presented in an extensive set of tables and charts available at this link. Telling similar stories to the data released last month (details here and here, commentary here), the latest numbers include a lot of interesting circuit-by-circuit information and data on average sentence lengths, pre- and post-Booker.

Stevens, Roberts, Gonzales and the death penalty

Returning after a full day of guidelines talk at the NASC Conference in DC, I returned to my computer to discover that Justice Stevens' comments about the death penalty over the weekend at the ABA Annual Meeting has brought new attention to capital sentencing issues. And that attention is finding its way to discussions over SCOTUS nominee John Roberts and discussions by AG Alberto Gonzales.

Also getting drawn into the capital conversation is AG Gonzales. According to this report, today at the ABA Annual Meeting in Chicago Gonzales conceded "that the system can stand some improving." Here's a snippet from the article:

Questioned by reporters, Attorney General Gonzalez would not agree that the system is flawed, or as former Illinois Governor George Ryan once described it, "broken," but Gonzalez said he and President Bush think it can be changed. “We ought to take advantage of changing technology such as DNA to ensure the fact that only the guilty are punished," Gonzalez said.

August 8, 2005

Editorial against Gonzales' Booker fix

The terrific 2005 NASC Conference begins in Washington DC this morning (and will take me off line for most of the day). Though a lot of the NASC talk will be about state sentencing issues, the schedule includes some federal sessions as well. Thus, perhaps it is fitting timing that this morning's Washington Post has this editorial criticizing the June speech given by AG Alberto Gonzales in which he advocated a legislative response to Booker in the form of "the construction of a minimum guideline system." (The speech's basics are here, and commentary can be accessed here and here and here.)

Echoing other editorials assailing the Gonzales speech (discussed here and here and here), the Post editorial notes the haste and imbalance in Gonzales' proposal to argue that he is "seeking a legislative fix that would do far more harm than good." Here's a snippet:

If Mr. Gonzales is concerned about disparate sentencing, letting some people be sentenced harshly and arbitrarily — which could happen under the system he proposes — is as bad as allowing excessive leniency. Allowing judges to be harsher, but not more lenient, than the guidelines suggest is a bad answer.

More fundamentally, while we disagreed with the court that the mandatory guidelines ought to be struck down, they were not without problems. The guidelines tended to be rigid, inflexible and insensitive to the individual circumstances of those sentenced under them — particularly in drug cases. In principle, giving judges more discretion is desirable. And the fact that some may be using the discretion the court has given them isn't necessarily a bad thing. Nor is the evidence Mr. Gonzales cites of judges increasingly departing from the guidelines especially impressive. The decline is modest, and it has been only a few months since the court ruled. It will take a lot longer than that to discern whether in practice the ruling is injecting objectionable disparities or a measure of common sense into criminal sentencing. Congress and the attorney general ought to withhold judgment until a clearer picture emerges.

August 7, 2005

Off to a great NASC Conference

To really be in tune with the full national story of modern sentencing reforms (and the fall-out from Blakely and Booker), Washington DC is the place to be this coming week for the 2005 Conference of the National Association of Sentencing Commissions, which starts today and runs through Tuesday. The Conference is fittingly entitled "The Continuing Evolution of Sentencing," and the particulars are detailed in this schedule. There will be lots and lots of state Blakely and federal Booker talk throughout the conference, as well as coverage of a number of other important sentencing reform issues.

I will be heading to DC this afternoon to attend the NASC conference. I have the honor of participating in a Monday panel discussing mandatory sentencing, and I am looking forward to every session over the two days of the conference. Blogging will be light during the conference, though I hope in the evenings to report on some of what I am learning.